Pillsbury Winthrop Shaw Pittman LLP

Transportation Finance Digest: Volume 1

In This Issue: - Introduction - All Hat And No Chattel: Life After Cape Town - Q&A - The Future Of Eca Financing - Deal Of The Year - An Innovative Engine Re-Securitization - Pillsbury Case…more

Aircraft Sales, Aviation Contracts, Aviation Industry

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UK Amends TUPE Regulations

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) has been in the spotlight as part of the UK Government’s Employment Law Review. TUPE implements the EU Acquired Rights Directive (“ARD”) in the…more

Employee Rights, TUPE, UK

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Expansion of Antitrust Enforcement Continues with Extradition

On April 4, 2014, the Department of Justice’s Antitrust Division announced its first successful extradition of a foreign national to the United States on antitrust charges. Romano Pisciotti, a citizen of Italy, has been under…more

Antitrust Investigations, Cartels, DOJ, Extradition, Foreign Nationals

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Lacey Act Lessons from the Lumber Liquidators $13 Million Settlement: Has the Definition of “Due Care” Been Expanded?

On October 7, 2015, Lumber Liquidators agreed to plead guilty to five criminal charges, including one felony, stemming from the purchase and import of certain wood products through three separate Chinese suppliers. The plea…more

Civil Monetary Penalty, Compliance, Corporate Counsel, Criminal Prosecution, Due Care

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Open Wide: FOIA Reform Expands Public Access to U.S. Government Information

On June 30, 2016, President Obama signed the bipartisan Freedom of Information Improvement Act of 2016 (S. 337). The bill most notably requires that the government operate under a “presumption of openness” in federal law and…more

FOIA, New Legislation, Obama Administration, Public Records, Request For Information

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Admit It! SEC May Seek Admissions of Wrongdoing in Settlements

The U.S. Securities and Exchange Commission (“SEC”) is poised to modify its “no-admit, no-deny” policy to seek more admissions of wrongdoing from defendants as a condition of settlement in enforcement cases. The change comes on…more

Criminal Sanctions, D&O Insurance, Indemnification, SEC, Settlement

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FAA Releases Long-Awaited Rule for Commercial Operations of Small Unmanned Aircraft Systems

A key milestone in regulating the commercial use of small unmanned aircraft systems (sUAS), the Federal Aviation Administration’s (FAA) final rule overhauls the current case-by-case exemption regime, establishes an operational…more

Airspace, Commercial Use, Federal Aviation Administration (FAA), Section 333 Exemption, Unmanned Aircraft Systems

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Transportation Finance Digest: Volume 1

In This Issue: - Introduction - All Hat And No Chattel: Life After Cape Town - Q&A - The Future Of Eca Financing - Deal Of The Year - An Innovative Engine Re-Securitization - Pillsbury Case…more

Aircraft Sales, Aviation Contracts, Aviation Industry

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New Law Mandates Disclosure of Alternative Fund Fees By California Public Pensions

To increase the transparency of fees and expenses paid to alternative funds, every California public pension plan must require each alternative fund in which they invest to make various disclosures, and California public pension…more

Disclosure Requirements, Fee Disclosure, Hedge Funds, Investment, Investment Funds

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“Ban the Box” Legislation Expands Across the Country

There is a growing national movement to “Ban the Box” – i.e., to prohibit questions about a job applicant’s criminal history on employment applications. Currently, “Ban the Box” laws are primarily targeted at public employers;…more

Ban the Box, Criminal Background Checks, Employee Rights, Job Applicants

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Supreme Court Reaffirms ERISA’s Preemptive Effect as It Overturns State Health Care Law

In Gobeille v. Liberty Mutual Insurance, the Supreme Court overturned a Vermont law requiring ERISA plans to disclose health payments to the state’s “All Payer Database.” The Court determined that reporting requirements are a…more

Employer Group Health Plans, ERISA, Gobeille v Liberty Mutual Insurance Com., Preemption, Reporting Requirements

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Toxic Substances and Control Act Overhaul

Under the recently amended Toxic Substances and Control Act (TSCA), EPA is bound by new requirements and enforceable timetables to complete risk assessments for chemicals manufactured, distributed and imported to the United…more

Chemical Safety for the 21st Century Act, Chemicals, Distributors, EPA, Flame Retardant

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Companies Should Consider Cuban Trademark Protection – Now

In December 2014, President Obama made an unexpected announcement signaling a “new course” for Cuba after more than fifty years of comprehensive U.S. sanctions. The changes to U.S. sanctions and export policy under the Cuban…more

Cuba, EAR, Embargo, Popular, Trade Policy

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Contracting with foreign entities and electronic signature under English Law: Getting the execution right

You've managed to agree the deal; all that's left is to sign the documents. That's the easy bit, correct? So you might think, but it is important to be careful not to slip up at this final stage, particularly when contracting…more

Contract Formation, E-Signatures, Foreign Entities, Signatures

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Spoofing Is No Joke: Prosecutors Clamp Down on High-Frequency Traders

On November 3, 2015, an Illinois federal jury convicted Michael Coscia, a high-frequency commodities trader, of six counts of commodities fraud and six counts of spoofing—entering a buy or sell order with the intent to cancel…more

CFTC, Commodities Exchange Act, Dodd-Frank, High Frequency Trading, SEC

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The EU’s Data Transfer “Privacy Shield”—Full Body Armor or a Candle in the Wind?

With the August 1st start of the Privacy Shield, the European Commission’s new and long-awaited transatlantic data transfer agreement with the U.S., businesses that had previously relied on the invalidated Safe Harbor scheme now…more

Binding Corporate Rules, CJEU, Data Collection, Data Protection Authority, DOJ

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New FAA Statutes and Rules for Commercial Drone Operations Will Benefit Utilities

The new Federal Aviation Administration’s (FAA) rules (or Part 107) governing the commercial use of small unmanned aircraft systems (also known as drones or sUAS) took effect on August 29, 2016. The utility and energy…more

Commercial Use, Drones, Federal Aviation Administration (FAA), Unmanned Aircraft Systems

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FTC Expands Focus on Tracking and Use of Consumers’ Location Data

Over the past few years, the Federal Trade Commission (“FTC”) has provided guidance regarding mobile platforms and app providers’ practices of collecting data about consumers’ locations through their mobile devices, with a focus…more

FTC, Geolocation, Mobile Apps

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Montanile, Amgen, Tackett & Moen: Four Important Employee Benefits Cases to Kick Off 2016

The year 2016 has only just started, and we have already seen several important court decisions related to employee benefit plans and the Employee Retirement Income Security Act of 1974, as amended (ERISA). This Client Alert…more

Amgen, Corporate Counsel, Employee Benefits, ERISA, Medical Expenses

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Proposed Section 2704 Regulations

On August 2, 2016, the Treasury Department released proposed regulations amending and expanding upon the current regulations to Internal Revenue Code Section 2704. The proposed regulations, if adopted, would affect the valuation…more

Business Succession, Business Valuations, Closely Held Businesses, Estate Planning, Estate Tax

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The U.S. Supreme Court Upholds EPA’s Cross-State Air Pollution Rule in EPA v. EME Homer City Generation, L.P., Paving the Way to Further Use of Cap-and-Trade Programs to Control Emissions of SO2 and NOx from Electric Power Plants.

On April 24, the Supreme Court issued a 6-2 decision in EPA v. EME Homer City Generation, L.P., No. 12-1182, 572 U. S. ____, 2014 WL 1672044 (2014), upholding EPA’s latest version of a regional cap-and-trade program under the…more

Cap-and-Trade, Carbon Emissions, Clean Air Act, EPA v EME Homer City, NAAQS

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Can IT Outsourcing Learn From Facilities Management Outsourcing?

2013 began with a flurry of articles about companies insourcing work or rethinking their sourcing strategies. The reasons for this vary by company, but often include a perception that outsourcing has not delivered the cost…more

Information Technology Outsourcing, Outsourcing, Technology

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Delaware Offers New Guidance on Enforcing Fiduciary Duties Owed to Insolvent Corporations

On May 4, 2015, Vice Chancellor Travis Laster of the Delaware Court of Chancery issued a decision in Quadrant Structured Products Co., Ltd. v. Vertin, analyzing creditors’ standing to bring derivative claims against directors…more

Board of Directors, Creditors, Derivative Suit, Directors, Fiduciary Duty

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Supreme Court Affirms FHA Disparate Impact Claims

Late last month, the Supreme Court handed down a significant decision affecting rights and obligations under the Fair Housing Act. The Court’s 5-4 decision in Texas Department of Housing and Community Affairs v. Inclusive…more

Affordable Housing, Burden of Proof, Disability Discrimination, Discrimination, Disparate Impact

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FAST Act’s Hidden Securities Law Benefits

The so-called “Fixing America’s Surface Transportation Act” or “FAST Act” was signed into law on December 4, 2015. Buried in the legislation are changes to the JOBS Act and the Securities Act of 1933 that add a statutory…more

Disclosure Requirements, Emerging Growth Companies, Fixing America’s Surface Transportation Act (FAST Act), JOBS Act, Private Placements

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FAST Act’s Hidden Securities Law Benefits

The so-called “Fixing America’s Surface Transportation Act” or “FAST Act” was signed into law on December 4, 2015. Buried in the legislation are changes to the JOBS Act and the Securities Act of 1933 that add a statutory…more

Disclosure Requirements, Emerging Growth Companies, Fixing America’s Surface Transportation Act (FAST Act), JOBS Act, Private Placements

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Cloud Computing: Not Always the Low Cost Alternative

There is no doubt cloud computing has delivered multiple benefits to the IT organization. However, without proper management and controls, these benefits could become a non-trivial expense to the organization. In a Wall Street…more

Cloud Computing, Computer Servers, Popular, Wall Street Journal

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Recent Trends in Commercial Aircraft Finance

Since the financial crisis, the aviation finance market has been through much change with the initial heavy reliance on export credit financing from US Export-Import Bank (Ex Im Bank) and the other export credit agencies (ECAs),…more

Aircraft, Bonds, Capital Markets, China, Commercial Loans

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A Double Standard in Construction Defect Coverage Cases?

The recent decision of Allied Property & Casualty Insurance Co. v. Metro North Condominium Associates highlights why only a minority of jurisdictions still hold to the fiction that construction defects cannot give rise to an…more

Commercial General Liability Policies, Construction Defects, Construction Industry, Construction Litigation, Construction Project

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Court of Appeal Holds Transfer Tax Applies to Legal Entity Changes in Ownership

In 926 North Ardmore Avenue, LLC v. County of Los Angeles, the 2nd District Court of Appeal held that Proposition 13 changes in ownership prompted by transfers of legal entity interests should also be characterized as “realty…more

Appeals, Change in Ownership, Legal Entities, Limited Liability Company (LLC), Proposition 13

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International Trade in the Trump Era — Issues to Watch

Donald Trump’s victory in the 2016 Presidential election put the Republican Party in charge of the White House and Congress for the first time in a decade. President-elect Trump ran as an anti-establishment candidate who…more

Donald Trump, Export Controls, NAFTA, Presidential Elections, Sanctions

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GAO Holds That Agency Improperly Credited Offeror With Past Performance of Affiliates

In IAP World Services, Inc.; EMCOR Government Services, B-407917.2 et al. (July 10, 2013), involving a protest challenging an award by the U.S. Department of the Navy (the “Navy”) for base operating support services, the…more

Affiliates, GAO, Improper Benefit, Joint Venture, U.S. Navy

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Perspectives - Fall 2012 Volume 3, Edition 2: An Executive Compensation, Benefits & Human Resources Law Update

In this Issue: - Don’t “Moench”ion It: Supreme Court Rejects Presumption of Prudence for ESOP Fiduciaries - Avoiding Claims of Excessive Fund Fees - Risk of ERISA Class Actions Can Be Reduced by Use of Plan…more

Arbitration Agreements, Class Action, Class Action Arbitration Waivers, ERISA, ESOP

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Transportation Finance Digest: Volume 1

In This Issue: - Introduction - All Hat And No Chattel: Life After Cape Town - Q&A - The Future Of Eca Financing - Deal Of The Year - An Innovative Engine Re-Securitization - Pillsbury Case…more

Aircraft Sales, Aviation Contracts, Aviation Industry

See All Updates »

Transportation Finance Digest: Volume 1

In This Issue: - Introduction - All Hat And No Chattel: Life After Cape Town - Q&A - The Future Of Eca Financing - Deal Of The Year - An Innovative Engine Re-Securitization - Pillsbury Case…more

Aircraft Sales, Aviation Contracts, Aviation Industry

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Raging Bull Heiress Knocks Out MGM’s Laches Defense

In Petrella v. Metro-Goldwyn-Mayer, Inc., Supreme Court holds that laches cannot bar claims for damages for copyright infringement brought during the 3-year limitations period. On May 19, 2014, in a case concerning the…more

Affirmative Defenses, Copyright, Copyright Infringement, Laches, MGM

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FAA Proposes Rules For Commercial Small Unmanned Aircraft Systems (sUAS) Operations (14 C.F.R. Part 107); White House Issues UAS Privacy Memorandum

On February 15, 2015, the U.S. Federal Aviation Administration (FAA) proposed rules for the commercial operation of small unmanned aircraft systems (sUAS) weighing less than 55 pounds—a long-awaited step towards integrating…more

Aerospace, Aviation Industry, Drones, Federal Aviation Administration (FAA), Proposed Regulation

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Five Things You Need to Know About the Extension of the ITC/PTC

On December 18, Congress approved and President Obama signed into law the Consolidated Appropriations Act, 2016 (the Act). Among the 887-page budget bill’s myriad provisions is an extension of federal income tax credits for…more

Consolidated Appropriations Act, Investment Tax Credits, Production Tax Credit, Renewable Energy, Solar Energy

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Doing Business in the U.S.

In This Issue: - Preface - Chapter 1 Choice Of A Business Entity - Chapter 2 Introduction To Federal Securities Laws - Chapter 3 From Let’S Go Shopping To Closing: U.S. M&A Process - Chapter 4 Employment…more

Anti-Bribery, Anti-Dumping Duty, Anti-Money Laundering, Commercial Real Estate Market, Corporate Governance

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Proposed U.S. Department of Transportation Passenger Protection Rules Offer Opportunity for Travel Industry Comments

On May 21, 2014, the U.S. Department of Transportation (DOT) proposed new passenger protection rules for the airline and travel industries, which would add to DOT’s extensive “Enhancing Airline Passenger Protections” regulations…more

Airlines, Aviation Industry, Department of Transportation (DOT), Safety Precautions

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Act Now to Prevent Loss of Patent Rights in March 16th Change to “First-Inventor-to-File” System

One of the most significant changes of the 2011 Leahy-Smith America Invents Act (“AIA”) takes effect on March 16, 2013, when the U.S. transitions from a “First-to-Invent” to a “First-Inventor-to-File” patent system, effectively…more

America Invents Act, First-to-File, Patent Reform, Patents, USPTO

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President’s Cybersecurity National Action Plan Seeks to Leverage Private Sector Expertise for Federal Advancement

As stated by Wired, “It’s all the standard advice you’d give a tech novice,” aptly sums up the White House’s Cybersecurity National Action Plan (CNAP) that President Obama unveiled on February 9, 2016. Announced as part of the…more

Cyber Attacks, Cyber Crimes, Cybersecurity, Cybersecurity National Action Plan (CNAP), Federal Funding

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Five Things about the IRS’s Proposed Regulations on the Spinoff Device and Active Business

On July 14, 2016, the Internal Revenue Service (IRS) proposed long-anticipated regulations tightening the “device” and “active trade or business” tests that are necessary for a corporation to distribute a subsidiary in a…more

Active Trade or Business Test, Business Assets, Business Taxes, Corporate Taxes, IRS

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The Robocalls and Class Actions Continue as FCC’s Omnibus TCPA Ruling Fails to Slow Surge of Lawsuits

In the face of ongoing uncertainty regarding permissible uses of modern telephone equipment under the TCPA, lawsuits and important precedents continue to pile up. The Telephone Consumer Protection Act of 1991 (TCPA), 47…more

Auto-Dialed Calls, Class Action, Corporate Counsel, FCC, Mobile Devices

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Fourth Circuit Finds Coverage for Cyber Incident under Commercial General Liability Policy

On April 11, the United States Court of Appeals for the Fourth Circuit rendered one of the first appellate-level decisions dealing with insurance coverage for a cyber event. The Fourth Circuit confirmed that a commercial general…more

Advertising Injury, Class Action, Commercial General Liability Policies, Cyber Insurance, Data Breach

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Out with the Old, In with the New: Commercial Flexibility & Revenue Expectation in IT Outsourcing Agreements (Part 2 of 2)

Happy new year, outsourcing industry! In our last post, we posited that the new year brings an opportunity for a fresh start in structuring fundamental aspects of an outsourcing transaction. We pointed to the following…more

Contract Termination, Information Technology Outsourcing, Revenue Growth, Service Agreements, Withdrawal

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Guidance for Companies Developing and Implementing Antitrust Compliance Programs

Recent policy statements by the U.S. Department of Justice’s Antitrust Division (“DOJ”) highlight the factors companies should consider when developing and implementing antitrust compliance programs. Effective antitrust…more

Antitrust Provisions, Best Management Practices, Chief Compliance Officers, DOJ

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IRS Uses New Tactic to Expand Efforts to Combat Offshore Tax Evasion

In a search for financial records of a U.S. taxpayer who allegedly parked undeclared income offshore, the Internal Revenue Service (IRS) and the U.S. Department of Justice (DoJ) are seeking to enforce a summons against a U.S…more

Foreign Banks, IRS, Offshore Funds, Popular, Strategic Enforcement Plan

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The Challenges of the Evolving Marijuana Industry: Reconciling State Legislation with Federal Prohibition

Cultivation, production, distribution, or possession of marijuana is a federal criminal offense under the Controlled Substances Act (the CSA). Yet, despite federal prohibition, state-sanctioned marijuana industries have emerged…more

Ballot Measures, Banks, Business Taxes, Compassionate Use Act, Controlled Substances Act

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Transportation Finance Digest: Volume 1

In This Issue: - Introduction - All Hat And No Chattel: Life After Cape Town - Q&A - The Future Of Eca Financing - Deal Of The Year - An Innovative Engine Re-Securitization - Pillsbury Case…more

Aircraft Sales, Aviation Contracts, Aviation Industry

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REIT Citizenship and the Impact of Americold Realty Trust on Jurisdictional Challenges

On March 7, 2016, the Supreme Court ruled unanimously in Americold Realty Trust v. ConAgra Foods, Inc. that unincorporated entities organized as “real estate investment trusts” (REITs) under Maryland law are citizens of every…more

Americold Realty Trust v Conagra Foods, Business Entities, Diversity Jurisdiction, REIT, SCOTUS

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Final Rules and Guidance Issued on “Blacklisting” Executive Order - Controversial Mandate Requires Disclosure of Labor and Employment Violations as Part of the Federal Contracting Process

On August 25, 2016, the Federal Acquisition Regulatory Council issued final rules and the Department of Labor (DOL) published final guidance implementing President Obama’s 2014 “Fair Pay and Safe Workplaces” Executive Order…more

Administrative Merits Determinations, Amended Regulation, Disclosure Requirements, DOL, Executive Orders

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Dodd-Frank Protocol Carries Burdens and Benefits for Pension Plans

The Commodity Futures Trading Commission has issued new “know your customer” and external business conduct rules to give effect to certain provisions of Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act…more

CFTC, Derivatives, Dodd-Frank, Employee Benefits, ERISA

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Halliburton: Supreme Court Changes Little About Securities Fraud Class Actions

In a widely anticipated decision, the Supreme Court upheld a twenty-six-year-old precedent that plaintiffs in securities fraud class actions may satisfy the reliance element by showing that they traded on an “efficient market”…more

Basic v Levinson, Class Certification, Fraud, Fraud-on-the-Market, Halliburton

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Circuit Split in Enforceability of Arbitration Clauses in Bankruptcy Left Unresolved

In a recent summary opinion, the Supreme Court denied certiorari review of a decision, Continental Insurance Co. v. Thorpe Insulation Co. (In re Thorpe Insulation Co.), 671 F.3d 1011 (9th Cir. 2012), where the Ninth Circuit had…more

Arbitration Agreements, SCOTUS, Split of Authority

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Spoofing Is No Joke: Prosecutors Clamp Down on High-Frequency Traders

On November 3, 2015, an Illinois federal jury convicted Michael Coscia, a high-frequency commodities trader, of six counts of commodities fraud and six counts of spoofing—entering a buy or sell order with the intent to cancel…more

CFTC, Commodities Exchange Act, Dodd-Frank, High Frequency Trading, SEC

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Cybersecurity and the Role of ERISA Fiduciaries

The Employee Retirement Income Security Act of 1974, as amended (ERISA), protects plan participant benefits and account balances by imposing high standards of care on the plan’s fiduciaries. Fiduciaries who do not follow these…more

Cybersecurity, Employee Benefits, Employer Group Health Plans, ERISA, Fiduciary Duty

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Appellate Division Review - Business Judgment Rule, Privilege, Child Support, Animal Rights

The more things change, the more they remain the same. As we enter a new year, New York’s Appellate Division faces the same and greater challenges: increasing caseloads, staff shortages, judicial vacancies, and legal disputes…more

Attorney-Client Privilege, Bank of America, Business Judgment Rule, Bylaws, Child Support

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The FTC Offers Businesses Tips on How to Respond to a Data Breach

It seems like managing data breaches has become a part of doing business these days. From the October denial of service attack on Dyn (a company that provides core internet services to companies like Twitter, Spotify and…more

Breach Notification Rule, Cybersecurity, Data Breach, Data Security, FTC

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Hurricane Matthew Requires Immediate Action to Maximize Insurance Recovery

After tearing through the Caribbean, Hurricane Matthew’s path brought it north to the Southeastern coast of the U.S., bringing evacuations, business closures and damages to the region. Florida, Georgia, South Carolina and North…more

Business Interruption, Commercial Insurance Policies, Expert Reports, FEMA, Homeowner's Insurance

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Location Disservices? Protecting against the Inherent Cybersecurity Risks of Geotagging

In this political season, much has been made about late-night Twitter rants targeting women and other social media attacks on individuals and celebrities. Although these harsh online critiques create a more hostile cyber…more

App Developers, Cybersecurity, Geolocation, SnapChat, Terms of Service

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Court of Appeal Holds Transfer Tax Applies to Legal Entity Changes in Ownership

In 926 North Ardmore Avenue, LLC v. County of Los Angeles, the 2nd District Court of Appeal held that Proposition 13 changes in ownership prompted by transfers of legal entity interests should also be characterized as “realty…more

Appeals, Change in Ownership, Legal Entities, Limited Liability Company (LLC), Proposition 13

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The “Panama Papers” and the Secret World of Shell Corporations - Reducing Liability Exposure and Seeking Insurance Coverage

A leak of 11.5 million documents from a law firm in Panama may implicate politicians, criminals, and celebrities in sheltering of fortunes in offshore tax havens through the use of shell companies. Called the “Panama Papers,”…more

Corruption, Criminal Investigations, DOJ, FCPA, Indemnity Insurance

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California Supreme Court Sets New Deferential Standard for Supplemental CEQA Review

In Friends of the College of San Mateo Gardens v. San Mateo Community College District, No. S214061 (Cal. September 19, 2016), the California Supreme Court rejected the “new project” test for determining whether a changed…more

Agency Deference, Appeals, CA Supreme Court, CEQA, Community Colleges

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As the New gTLDs Near Launch, What's Happening and How Can You Protect Yourself?

While much of the world is finally getting a handle on the .com, .net and .org domains, we are on the brink of an explosion of hundreds of new generic top- level domains (“gTLDs”). In fact, if things go as planned, we will soon…more

gTLD, Internet, Trademarks, Websites

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NAB Agreement With Sony Brings Flexibility Back to Music Streaming

The NAB has negotiated a waiver agreement with Sony Music Entertainment that will once again enable radio stations to stream Sony-licensed music unhindered by certain restrictions established by the statutory music streaming…more

Digital Media, Music Streaming, Sony

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Another Step to Speed Up the Company Registration Process in China

Under the current company registration procedures of the People’s Republic of China, before undertaking the approval and/or registration procedures for establishing a company, the investor(s) of a new company must first file a…more

China, Companies Act, Ficticious Business Name, Foreign Corporations, Registration Requirement

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Brexit: What Now?

The United Kingdom has voted to leave the European Union. The vote is not legally binding but Prime Minister David Cameron has already acknowledged that the will of the people must be followed. We consider the key preliminary…more

Acquisitions, Article 50 Treaty of the EU, Bilateral Agreements, Capital Markets, Data Protection

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U.S. Repeals Longstanding Ban on Export of Crude Oil

Effective immediately and subject to limited restrictions, U.S. producers may begin exporting crude oil to overseas customers. On December 18, 2015, the President signed into law the massive Consolidated Appropriations Act…more

Consolidated Appropriations Act, Crude Oil, Exports, Natural Gas, Oil & Gas

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PHH v. CFPB, Part I: President of Consumer Finance No More

In response to a challenge from mortgage servicer PHH Corp. regarding the constitutionality of the single director structure of the Consumer Financial Protection Bureau (the CFPB or Bureau), the United States Court of Appeals,…more

CFPB, Constitutional Challenges, Director Removal, Dodd-Frank, Government Agencies

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California Supreme Court Sets New Deferential Standard for Supplemental CEQA Review

In Friends of the College of San Mateo Gardens v. San Mateo Community College District, No. S214061 (Cal. September 19, 2016), the California Supreme Court rejected the “new project” test for determining whether a changed…more

Agency Deference, Appeals, CA Supreme Court, CEQA, Community Colleges

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Extort Me Not: Supreme Court Expands Protections for Permit Applicants Under the Takings Clause

The high court’s decision in Koontz v. St. John’s River Water Management District extends the landmark decisions in Nollan and Dolan, which set standards on when an agency can condition a land use permit on the relinquishment of…more

Dolan v City of Tigard, Fifth Amendment, Koontz v St John's River Water Management, Land Developers, Nexus

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New York State Department of Taxation and Finance To Disregard Single-Member LLC Interests for New York Estate Tax

In a recent New York State Advisory Opinion, the New York State Department of Taxation and Finance advised that a federal income tax entity classification election could impact whether property held by a nonresident through a…more

Estate Tax, Foreign Corporations, Income Taxes, Limited Liability Company (LLC), Property Tax

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California Cities To Tax Streaming Video?

Many cities in California are considering the expansion of their Utility User Tax (UUT) to streaming video services. Such an expansion may be inconsistent with the cities’ existing ordinances, be invalid under Proposition 218…more

Apportionment, Cable Television Providers, Cell Phones, Commerce Clause, Constitutional Challenges

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GSA May Abolish the Price Reduction Clause

On March 4, 2015, the U.S. General Services Administration (GSA) issued a proposed rule that could abolish the long-standing price reduction clause (PRC) from the GSA Schedule program. GSA is proposing to eliminate the clause…more

Federal Contractors, General Services Administration (GSA), Price Reduction Clause

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The Case of Prince, a Dancing Baby and the DMCA Takedown Notice

In 2007, Stephanie Lenz posted a 29-second video to YouTube of her baby dancing in the kitchen with Prince’s “Let’s Go Crazy” playing in the background. Claiming use of their song amounted to copyright infringement, Universal…more

Copyright, Copyright Infringement, Copyright Litigation, Digital Media, DMCA

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9th Circuit Rejects NEPA Challenges To Planned 1.9-Mile Underground Light Rail Extension Project in Downtown LA

On December 6, the U.S. Court of Appeals for the Ninth Circuit, in the case of Japanese Village, LLC v. Federal Transit Administration, et al., affirmed the district court’s grant of summary judgement to the government…more

Appeals, Federal Transit Administration, NEPA, Railways, Summary Judgment

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New York Bankruptcy Court Authorizes Rejection of Midstream Contracts

Bad news for midstream counterparties of bankrupt oil & gas producers: you may not be able to rely (as much as you might have expected) on covenants “running with the land” to save your contracts from rejection in…more

Commercial Bankruptcy, Covenants that Run With the Land, Executory Contracts, Midstream Contracts, Oil & Gas

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Social Media Platforms and a Company’s Right to Free Expression

Political campaigns have increasingly turned to social media as a channel to reach voters. Social media not only has the power to reach audiences numbering in the billions, but it also has the power to change the behavior of its…more

Facebook, First Amendment, Political Campaigns, Social Media

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The FBI Dips into Twitter’s Data Stream

Following up on our earlier post regarding the Era of Hashtag Surveillance, the FBI has published documents indicating that it intends to enter into a deal with a Twitter data miner, appropriately named Dataminr (and partially…more

Data Privacy, FBI, Social Media, Twitter

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Meeting New OTC Swap Reconciliation Rules May Require Better Technology and Processes

Although reconciliation of the key terms has been a best practice for over-the-counter derivative trades for some time (particularly with collateralised trades), the scale of the reconciliation exercise imposed by forthcoming…more

CFTC, Data Protection, Derivatives, Due Diligence, EU

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Four Things You Should Know About New York's Recent Advisory Opinion on the Taxation of SaaS

On May 15, 2015, the New York Department of Taxation and Finance determined in Advisory Opinion TSB-A-15(2)S that the sale of certain cloud computing services were not subject to New York State sales and use tax. The Advisory…more

Advisory Opinions, Cloud Computing, SAAS, Sales & Use Tax

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Transportation Finance Digest: Volume 1

In This Issue: - Introduction - All Hat And No Chattel: Life After Cape Town - Q&A - The Future Of Eca Financing - Deal Of The Year - An Innovative Engine Re-Securitization - Pillsbury Case…more

Aircraft Sales, Aviation Contracts, Aviation Industry

See All Updates »

New Law Mandates Disclosure of Alternative Fund Fees By California Public Pensions

To increase the transparency of fees and expenses paid to alternative funds, every California public pension plan must require each alternative fund in which they invest to make various disclosures, and California public pension…more

Disclosure Requirements, Fee Disclosure, Hedge Funds, Investment, Investment Funds

See All Updates »

Five Things about the IRS’s Proposed Regulations on the Spinoff Device and Active Business

On July 14, 2016, the Internal Revenue Service (IRS) proposed long-anticipated regulations tightening the “device” and “active trade or business” tests that are necessary for a corporation to distribute a subsidiary in a…more

Active Trade or Business Test, Business Assets, Business Taxes, Corporate Taxes, IRS

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Tobacco Advertising Q&A

While it has been decades since Congress banned cigarette ads from the airwaves, broadcasters continue to ask for advice on whether they may air certain types of tobacco-related advertisements. In fact, questions in this area of…more

Advertising, DOJ, FCC

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New Nevada Employment Law Developments Affect Social Media, Overtime

There have been several notable and recent developments in Nevada employment law both through enacted legislation and advisory opinions issued by the Nevada Labor Commissioner. Specifically, the legislature has passed a law…more

Employee Rights, New Legislation, Social Media Policy, Unpaid Overtime

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Catching Up with Winding Down: The Status of California Redevelopment Successor Agencies

Successor agencies to California’s dissolved Redevelopment Agencies (“RDAs”) continue to wind down the operations of the former RDAs under the supervision of oversight boards pursuant to Assembly Bill X1 26 (“AB 26”) as modified…more

Dissolution, Funding, Payment Schedules, Successor Agencies

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A New Landscape - Compliance clarifications and planning opportunities for governmental and tax-exempt employers sponsoring deferred compensation arrangements

On June 22, 2016, the Internal Revenue Service (IRS) published its long-awaited proposed regulations (the Proposed Regulations) under Section 457(f) of the Internal Revenue Code (the Code). Section 457(f) governs the taxation of…more

Death Benefits, Deferred Compensation, Employee Benefits, Forfeiture, Internal Revenue Code (IRC)

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California Supreme Court: Gentry is Gone. PAGA Lives On.

Compelled by U.S. Supreme Court precedent advancing arbitration as a method of dispute resolution, the California Supreme Court in Iskanian v. CLS Transportation Los Angeles, LLC (No. S20432, June 23, 2014) held that its…more

Arbitration, Class Action, Class Action Arbitration Waivers, CLS Transportation, Employer Liability Issues

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FCC Enforcement Monitor ~ November 2016

Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month’s issue…more

Broadcasting, Communications Act of 1934, FCC, Licensees, Telecommunications

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PTAB Refuses to Honor “No-Challenge” Clauses

Thankfully, that patent case you litigated a few years back is long gone in the rear-view mirror. As the plaintiff, you received a nice lump sum payment and a going forward royalty. Even better, the defendant agreed to never…more

Corporate Counsel, Estoppel, Inter Partes Review (IPR) Proceeding, Oracle, Patent Infringement

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Redefining U.S. Export Controls: Takeaways from Key Changes Effective September 1st

On September 1, 2016 new rules previously published by the U.S. Department of Commerce, Bureau of Industry and Security (BIS) and the U.S. Department of State, Directorate of Defense Trade Controls (DDTC) will become effective…more

BIS, DDTC, EAR, Export Controls, ITAR

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Redskins Ruling is Consistent with TTAB Precedent

In Blackhorse v. Pro-Football Inc., the U.S. Patent and Trademark Office once again canceled various registrations for trademarks used by the Washington Redskins football team as being disparaging to Native Americans. While this…more

Blackhorse v Pro-Football, Disparagement, Football, Lanham Act, Native American Issues

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Ninth Circuit Opens the Door to Relaxing Decades-Old Law Restricting Supplier-Paid Advertising in Retail Establishments

In a decision released on January 7, 2016, Retail Digital Network LLC v. Jacob Appelsmith, the U. S. Court of Appeals for the Ninth Circuit overturned 29-year-old precedent set in Actmedia Inc. v. Stroh, which held that those…more

Advertising, Commercial Speech, First Amendment, Free Speech, Manufacturers

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Free Speech Protection for Facebook "Likes" by Public Employees

Last week, in Bland v. Roberts, the U.S. Court of Appeals for the Fourth Circuit handed a constitutional victory to Facebook and two plaintiffs who lost their jobs after displaying online support for the incumbent’s opponent in…more

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New York Court of Appeals Gives Global Banks Big Win on “Separate Entity” Issue

In Motorola Credit Corp. v. Standard Chartered Bank, 2014 N.Y. Slip Op. 07199, 2014 WL 5368774 (Oct. 23, 2014) (“Motorola”), the highest New York state court ended five years of uncertainty and for the first time expressly…more

Banks, Foreign Banks, Judgment Debtors, Separate Entity Rule

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FedRAMP Accelerates the Process for Federal Contractors to Obtain Cloud Service Provider Authorizations and DoD Revises its Cloud Computing Security Requirements Guide for FedRAMP+

Cloud computing is ubiquitous in the federal market place. Many federal contractors either provide cloud computing services to the government or use cloud computing services when performing a federal contract. For cloud service…more

Cloud Computing, Cybersecurity, Data Protection, Data Security, Department of Defense (DOD)

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Nevada’s AG Reminds Retailers, Wholesalers and Suppliers: Comply with Alcohol Beverage Laws

On January 30, 2014 the State of Nevada Attorney General’s Office issued an open letter to all retailers, wholesalers and suppliers of alcohol beverages in Nevada reminding them of their legal obligation to comply with the…more

Retailers, Suppliers, Wholesale, Wine & Alcohol

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Proxy Season Brings a Third Wave of “Gotcha” Shareholder Litigation

Proxy season is upon us and the plaintiffs’ bar is demonstrating its resourcefulness by bringing a third wave of shareholder litigation. This new wave, which has not crested yet, consists of a return to derivative shareholder…more

Annual Meeting, Board of Directors, Derivative Suit, Executive Compensation, Exit Strategies

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Consumer Group Asks FTC to Adopt EU’s Right to be Forgotten

Last year we wrote about the EU’s adoption of an individual’s “right to be forgotten”, which gives Europeans the right to require search engines to remove information about them from search results for their own names, if the…more

Child Pornography, Compliance, Consumer Watchdog, FTC, Google

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Addressing Cyber Attacks and Data Breaches in Supplier Contracts - Part 2: How are Limits of Liability Evolving, with Respect to the Issue of Data Breaches?

Ten years ago, most "buyers/customers" expected their suppliers to absorb unlimited contractual liability if the supplier was responsible for a breach affecting the customer's data. Today, while customers may continue to insist…more

Commercial Insurance Policies, Contract Negotiations, Cyber Attacks, Data Breach, Suppliers

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The Atypical Creditor: How EU Bail-In Provisions Impact Borrowers

On January 1, 2016, the European Union’s “bail-in” provisions went into effect. The bail-in provisions, authorized under the Bank Recovery and Resolution Directive (BRRD) and implemented by the Single Resolution Mechanism (SRM),…more

Bail-In Provisions, Banking Sector, Borrowers, BRRD, Creditors

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Riley and the Third-party Doctrine

On June 25, 2014, the U.S. Supreme Court issued one groundbreaking opinion in two cases regarding cellphone searches incident to arrest. In a unanimous opinion, the court held that under the Fourth Amendment, police must obtain …more

Cell Phones, Data Collection, Fourth Amendment, NSA, Personally Identifiable Information

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U.S. Supreme Court Makes It Harder to Remove Some Securities Cases to Federal Court

In Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning, the U.S. Supreme Court held that mere references to Securities Exchange Act of 1934 violations in a state law claim filed in state court are not sufficient grounds for…more

28 USC 1331, Federal Jurisdiction, Merrill Lynch v Manning, RICO, SCOTUS

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The Ties that Bind: Commitment Letters under English Law

A recent decision of the UK Commercial Court sounds a cautionary note to parties entering into pre-contractual deal documents on the assumption that they do not constitute legally binding obligations. In Novus Aviation Limited…more

Breach of Contract, Commitment Letter, Contract Terms, UK

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Blockchain Basics: A Primer - Blockchain, the technology underlying the cryptocurrency Bitcoin, is poised to revolutionize how all commercial transactions are conducted

You have probably heard of Bitcoin, a peer-to-peer, non-governmental currency. Bitcoin is the first money that is its own payment system. That is, no bank, money transmitter or intermediary of any kind is required to clear and…more

Bitcoin, Blockchain, Corporate Sales Transactions, Digital Assets, Financial Sector

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Post-Election Outlook: A New, Unpredictable World

In a shock to investors and political analysts around the world, Donald J. Trump won the 2016 Presidential election, putting the Republican Party in charge of the White House and Congress for the first time in a decade. Even…more

Affordable Care Act, Antitrust Provisions, Automotive Industry, Campaign Finance Reform, CFPB

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Proposed Changes to GAO Bid Protest Rules: Greater Formality, Overall Familiarity

On April 15, 2016, the Government Accountability Office (GAO) issued a proposed rule in the Federal Register that would amend its current bid protest regulations, codified at 4 C.F.R. Part 21.1 The proposed rule adds a degree of…more

Bid Protests, Electronic Filing, Federal Contractors, Filing Fees, GAO

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DC Circuit Upholds FEC’s Limited Disclosure Rule for Corporations and Labor Unions

On January 21, 2016, the United States Court of Appeals for the District of Columbia Circuit upheld the Federal Election Commission’s (FEC) rule requiring corporations and labor organizations to disclose on an electioneering…more

Campaign Contributions, Citizens United v Federal Election Commission, Disclosure Requirements, Federal Election Commission (FEC), Political Advertising

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PTAB Refuses to Honor “No-Challenge” Clauses

Thankfully, that patent case you litigated a few years back is long gone in the rear-view mirror. As the plaintiff, you received a nice lump sum payment and a going forward royalty. Even better, the defendant agreed to never…more

Corporate Counsel, Estoppel, Inter Partes Review (IPR) Proceeding, Oracle, Patent Infringement

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Don’t Get Caught with your Transition Services Down (part 2 of 2)

In the first installment of this post, I posited that one factor contributing to disappointing results following a merger or acquisition is the flawed perception that transition services are not that important. I noted that this…more

Acquisitions, Mergers, Strategic Planning

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Recent Changes to New York Estate and Income Tax

On March 31, 2014, the New York State legislature passed and Gov. Andrew Cuomo signed into law the New York State 2014-2015 Budget Bill (the “New Law”), which contains a number of revisions to the New York State estate tax law…more

Estate Tax, Income Taxes, State Taxes, Tax Reform

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New Law Mandates Disclosure of Alternative Fund Fees By California Public Pensions

To increase the transparency of fees and expenses paid to alternative funds, every California public pension plan must require each alternative fund in which they invest to make various disclosures, and California public pension…more

Disclosure Requirements, Fee Disclosure, Hedge Funds, Investment, Investment Funds

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HSR Thresholds Will Increase for 2016 Transactions

On February 25, 2016, revised thresholds for the Hart-Scott-Rodino Act (HSR) will take effect. The thresholds determine whether parties involved in proposed mergers, consolidations, or other acquisitions of voting securities,…more

DOJ, FTC, Hart-Scott-Rodino Act, Reporting Requirements, The Clayton Act

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Beware of Violating Patient Privacy Laws in Bankruptcy Claim Filings

Recent court filings highlight the need for health care providers to protect patient privacy by implementing specific procedures when filing claims in bankruptcy cases of their patients, as a matter of federal bankruptcy and…more

Commercial Bankruptcy, Contempt, Damages, HIPAA, Motion for Sanctions

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Post-Election Outlook: A New, Unpredictable World

In a shock to investors and political analysts around the world, Donald J. Trump won the 2016 Presidential election, putting the Republican Party in charge of the White House and Congress for the first time in a decade. Even…more

Affordable Care Act, Antitrust Provisions, Automotive Industry, Campaign Finance Reform, CFPB

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DOJ’s New White-Collar Policy Directs Prosecutors to Focus on Individual Accountability

On September 9, 2015, Deputy Attorney General Sally Quillian Yates introduced a new policy aimed at aggressively prosecuting individuals for white-collar crimes. A product of a DOJ working group that started under former…more

Corporate Investigations, Criminal Investigations, Criminal Prosecution, DOJ, Enforcement Actions

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You've been fired!

It isn't often that a supplier "fires" its customer, but it's not unknown. I have worked with two clients recently whose suppliers have given notice of termination without cause. How can you avoid or, if it does happen,…more

Suppliers, Termination

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Lesson of Ninth Circuit CERCLA Decision: Prepare to Prove Recoverable Costs

On June 13, 2016, the Ninth Circuit held that a party which has settled its liability pursuant to a CERCLA section 1071 cost recovery claim may recover any response costs not covered by the settlement under CERCLA section 107…more

CERCLA, Clean-Up Costs, DTSC, EPA, Hazardous Substances

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When Can a Bondholder Insist on Prompt Payment of Principal or Interest: Recent Developments under the Trust Indenture Act

In December 2014 and January 2015, the United States District Court for the Southern District of New York issued two sets of decisions — Marblegate Asset Mgmt. v. Educ. Mgmt. Corp. and MeehanCombs Global Credit Opportunities…more

Bankruptcy Reform, Bonds, Chapter 11, Debt Restructuring, Fraudulent Conveyance

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Ninth Circuit Clarifies Whose “Misconduct” Triggers SOX 304 Disgorgement But Not What Constitutes “Misconduct”

Section 304 of the Sarbanes-Oxley Act of 2002 (15 U.S.C. § 7243) requires CEOs and CFOs to repay bonuses, incentive- and equity-based compensation, and profits realized on the sale of securities received in the 12 months after…more

CEOs, CFOs, Clawbacks, Corporate Counsel, Corporate Misconduct

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Post-Election Outlook: A New, Unpredictable World

In a shock to investors and political analysts around the world, Donald J. Trump won the 2016 Presidential election, putting the Republican Party in charge of the White House and Congress for the first time in a decade. Even…more

Affordable Care Act, Antitrust Provisions, Automotive Industry, Campaign Finance Reform, CFPB

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Managing Ageing Fleets

Manufacturers design modern aircraft with a prescribed lifespan, or ‘design life’ of 25 years. The lifespan includes a specified number of flight hours and flight cycles, which allows the aircraft OEM, owner and operator to…more

Aircraft, Manufacturers, Operation & Maintenance

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Congress Raises the Stakes for Theft of Trade Secrets with Passage of Two New Laws

The old adage that crime does not pay rings particularly true in the aftermath of two pieces of recent legislation aimed at raising the penalties for trade secret theft: the Theft of Trade Secrets Clarification Act and the…more

Aleynikov, Economic Espionage Act, Misappropriation, Penalties, Theft of Trade Secrets Clarification Act

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Five Facts about the Proposed UK Diverted Profits Tax

The UK government has proposed its "diverted profits tax" in order "to counteract contrived arrangements used by large groups (typically multinational enterprises) that result in the erosion of the UK tax base." There follows a…more

Diverted Profits Tax, Multinationals, UK

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“Reverse CEQA” Reversed: California Supreme Court Rejects CEQA Analysis of Impacts of the Environment on the Project

In California Building Industry Association v. Bay Area Air Quality Management District (December 17, 2015) (Case No. S213478) (CBIA v. BAAQMD), the California Supreme Court rejected a requirement for so-called “reverse CEQA”…more

Bay Area Air Quality Management District, CA Supreme Court, California Building Industry Association (CBIA), CEQA, Contamination

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The EU’s Data Transfer “Privacy Shield”—Full Body Armor or a Candle in the Wind?

With the August 1st start of the Privacy Shield, the European Commission’s new and long-awaited transatlantic data transfer agreement with the U.S., businesses that had previously relied on the invalidated Safe Harbor scheme now…more

Binding Corporate Rules, CJEU, Data Collection, Data Protection Authority, DOJ

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Post-Election Outlook: A New, Unpredictable World

In a shock to investors and political analysts around the world, Donald J. Trump won the 2016 Presidential election, putting the Republican Party in charge of the White House and Congress for the first time in a decade. Even…more

Affordable Care Act, Antitrust Provisions, Automotive Industry, Campaign Finance Reform, CFPB

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Federal Circuit’s Split Decision on Software Patents in CLS Bank Satisfied No One and Confused All

Section 101 of the patent statute lists the categories of subject matter eligible for patent protection as including “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement…more

CLS Bank, CLS Bank v Alice Corp, Patent-Eligible Subject Matter, Patents, SCOTUS

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Congress Urged to Block Certain Chinese Investments in the U.S.

On November 16, 2016, the U.S.-China Economic and Security Review Commission (USCC) issued its 2016 Annual Report to Congress, which included 20 recommendations on Congressional action to be used for assessing progress and…more

Acquisitions, CFIUS, China, Foreign Investment, National Security

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New York Creates Rocket-Docket for Commercial Disputes—But Accelerated Adjudication Comes With Trade-Offs

As of June 2, the Commercial Division of the New York Supreme Court will allow for the accelerated adjudication of commercial disputes. Rule 9 of Section 202.70(g) of the Uniform Rules for the Supreme and County Courts takes…more

Contract Disputes, Discovery, Expedited Discovery

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California AG Issues New Privacy Policy and “Do Not Track” Compliance Guidelines, Announces Proactive Enforcement

The California Attorney General recently released a series of guidelines to assist with compliance with the California Online Privacy Protection Act of 2003 (CalOPPA), which was amended to require new data collection and Do Not…more

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U.S. Government Shutdown: Will Performance of Private Contracts Be Excused?

With Congress unable to reach an agreement on a continuing resolution, the federal government shut down all “non-essential” services on October 1, 2013. The shutdown will remain in effect until Congress passes appropriations…more

Breach of Contract, Force Majeure Clause, Government Shutdown, Specific Performance

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Nationwide EAS Test Comes With a “To Do” List for Broadcasters and Other EAS Participants

Those trying to keep up with the news surrounding the upcoming nationwide test of the Emergency Alert System (“EAS”) know that a lot has been happening in a short period of time. Below, we pull together the many recent FCC…more

Emergency Alerts, FCC, FEMA, Filing Requirements

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One and Done: Stage 3 Forward Auction Ends After Just One Round of Bidding

At the end of Stage 2 of the Spectrum Auction, I wrote about bidder fatigue and the hope that the FCC would drop its spectrum clearing target a couple of notches for Stage 3 to expedite the conclusion of a now seemingly…more

Broadcasting, FCC, Internet Auctions, Spectrum

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Lesson of Ninth Circuit CERCLA Decision: Prepare to Prove Recoverable Costs

On June 13, 2016, the Ninth Circuit held that a party which has settled its liability pursuant to a CERCLA section 1071 cost recovery claim may recover any response costs not covered by the settlement under CERCLA section 107…more

CERCLA, Clean-Up Costs, DTSC, EPA, Hazardous Substances

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FinCEN Expands Scope of “All Cash” GTOs

Continuing its efforts to deter the use of real estate as a vehicle to launder proceeds of criminal activity, the Financial Crimes Enforcement Network (FinCEN) recently announced its plan to extend the reach and time frame of…more

Anti-Money Laundering, Cash Transactions, Compliance, Customer Due Diligence (CDD), DOJ

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The U.S. Supreme Court Holds EPA Must Consider Costs in Deciding to Regulate Power Plants

The U.S. Supreme Court’s June 29th decision in Michigan v. EPA, taken together with another significant CAA opinion from last term, Utility Air Regulatory Group v. EPA, demonstrates the Court’s proclivity for subjecting agency…more

Chevron Deference, Chevron v NRDC, Clean Air Act, Cost-Benefit Analysis, Energy Sector

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Trends in Single-Family Housing

Rising home values in many areas of the country and improved economic data have buoyed hopes that the recession may be behind us, but no one expects an immediate return of either pre-2007 home value appreciation or the loose…more

Foreclosure, Investors, Mortgage Loan Servicing Standards, Mortgages, REO Portfolios

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Superstorm Sandy and Con Edison’s Power Shutdown: Lessons from Johnson Gallagher

In the wake of Superstorm Sandy, property insurers have repeatedly denied coverage for business owners in lower Manhattan – arguing that ConEd intentionally cut off power to its networks and that flooding damaged ConEd’s…more

Hurricane Sandy, Property Damage, Property Insurance, Utilities Sector

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Proposed Section 2704 Regulations

On August 2, 2016, the Treasury Department released proposed regulations amending and expanding upon the current regulations to Internal Revenue Code Section 2704. The proposed regulations, if adopted, would affect the valuation…more

Business Succession, Business Valuations, Closely Held Businesses, Estate Planning, Estate Tax

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Supreme Court to Securities Issuers: Beware What You Omit When Stating Your Opinions

Deciding this Term’s big securities case, a unanimous Supreme Court held on March 24 that a statement of opinion does not become actionable under the “untrue statement of material fact” clause of section 11 of the Securities…more

Material Misstatements, Omnicare, Omnicare v Laborers District Council, Public Offerings, Registration Statement

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New FCPA Self-Reporting Pilot Program Formalizes Rewards but Relies on Discretionary Implementation

On April 5, 2016, the Department of Justice unveiled a one-year pilot program designed to encourage companies to self-report violations of the Foreign Corrupt Practices Act (the FCPA). Built upon the Department’s September 9,…more

Bribery, Compliance, Cooperation, Corporate Misconduct, Criminal Prosecution

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Labeling and Pedigree Requirements of the Drug Supply Chain Security Act

Counterfeit and adulterated prescription drugs in the supply distribution chain pose a significant risk to patient safety. On November 27, 2013, President Obama enacted the Drug Supply Chain Security Act (DSCSA), which amends…more

Drug Distribution, DSCSA, FDA, Labeling, Pharmaceutical Industry

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Proposed Rule For Independent Research & Development (“IR&D”) Costs Raises Concerns

On November 4, 2016, the Department of Defense (“DOD”) issued a proposed rule that would amend the Defense Federal Acquisition Regulation Supplement (“DFARS”) to require DOD Contracting Officers to adjust offerors’ proposed…more

DFARS, Dodd-Frank, Federal Acquisition Regulations (FAR), Federal Contractors, Proposed Rules

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Doing Business in the United States

In This Book: - Choice Of A Business Entity - Introduction To Federal Securities Laws - From Let’s Go Shopping To Closing: M&A Process In The United States - Employment Considerations - Equity…more

Business Formation, Choice of Entity, Commercial Real Estate Market, Corporate Taxes, Dispute Resolution

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Maryland Expands Recordation and Transfer Tax Exemption to Include LLC Transactions

Effective July 1, 2013, Maryland’s recordation and transfer tax exemption for transfers of real property between related entities will be available to limited liability companies. The exemption, previously applicable only to…more

Limited Liability Company (LLC), Recordation, Tax Exemptions, Transfer Taxes

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Bitcoin Game Changer?

Former Goldman Sachs, Morgan Stanley, BNP Paribas and Societe Generale bankers have announced a new futures and options derivatives-trading platform for bitcoin. The derivatives, tied to the price of bitcoin, will enable…more

Banks, Bitcoin, BNP Paribas, Derivatives, Digital Currency

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Lesson of Ninth Circuit CERCLA Decision: Prepare to Prove Recoverable Costs

On June 13, 2016, the Ninth Circuit held that a party which has settled its liability pursuant to a CERCLA section 1071 cost recovery claim may recover any response costs not covered by the settlement under CERCLA section 107…more

CERCLA, Clean-Up Costs, DTSC, EPA, Hazardous Substances

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Protecting Fashion through Copyrights: The Supreme Court Will Decide Whether Cheer Uniform Designs Are Protectable

Last week, the U.S. Supreme Court announced that it will address the issue whether apparel can be protected by copyright law—a question described by the petitioners in the case as “the single most vexing, unresolved question in…more

Cheerleaders, Copyright, Copyright Infringement, Fashion Design, SCOTUS

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Post-Election Outlook: A New, Unpredictable World

In a shock to investors and political analysts around the world, Donald J. Trump won the 2016 Presidential election, putting the Republican Party in charge of the White House and Congress for the first time in a decade. Even…more

Affordable Care Act, Antitrust Provisions, Automotive Industry, Campaign Finance Reform, CFPB

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Hurricane Matthew Requires Immediate Action to Maximize Insurance Recovery

After tearing through the Caribbean, Hurricane Matthew’s path brought it north to the Southeastern coast of the U.S., bringing evacuations, business closures and damages to the region. Florida, Georgia, South Carolina and North…more

Business Interruption, Commercial Insurance Policies, Expert Reports, FEMA, Homeowner's Insurance

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New Nevada Employment Law Developments Affect Social Media, Overtime

There have been several notable and recent developments in Nevada employment law both through enacted legislation and advisory opinions issued by the Nevada Labor Commissioner. Specifically, the legislature has passed a law…more

Employee Rights, New Legislation, Social Media Policy, Unpaid Overtime

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Supreme Court Validates “Implied Certification” Liability Under False Claims Act

The U.S. Supreme Court issued its decision on June 16, 2016, in Universal Health Services v. United States ex rel. Escobar, No. 15-7, a case the government contractor and health care communities hoped the Court would use to…more

False Claims Act (FCA), False Implied Certification Theory, Federal Contractors, Federal Rules of Civil Procedure, Implied Certification

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India Takes the Next Step in Forming Its Nuclear Liability Framework

On February 4, 2016, India submitted to the International Atomic Energy Agency (IAEA) its Instrument of Ratification of the Convention on Supplementary Compensation for Nuclear Damage (CSC). Under the applicable rules, the CSC…more

IAEA, India, Nuclear Power

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Perspectives on Insurance Recovery

Welcome to the latest edition of Pillsbury’s Perspectives on Insurance Recovery. As this 2015 edition of Perspectives demonstrates, our team is working on the most challenging issues—from cyber-insurance and complex claims…more

Bad Faith, Certificate of Insurance, Commercial Property Owners, Construction Contracts, Cyber Insurance

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The Dos and Don’ts of an SEC Examination

The regulatory environment for SEC-registered advisers has become more complex as the result of a more aggressive and interconnected Securities and Exchange Commission (SEC). The connecting hub within the SEC is the Office of…more

Asset Management, Enforcement Actions, OCIE, Registered Investment Advisors, SEC

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The Second Circuit Sets New Hurdles for Insider Trading Convictions

Under the Second Circuit’s new ruling, prosecutors have two large hurdles they must clear to convict under securities laws. First, they must prove that a defendant knew that the source of inside information disclosed tips in…more

Illegal Tipping, Insider Trading, Material Nonpublic Information, Personal Benefit, Securities

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Gambling in the Workplace is Anything But a Safe Bet

So you didn’t win the Powerball jackpot?  There are still plenty of opportunities to win big in the next few weeks as Super Bowl L, March Madness, and even the Oscars quickly approach.  Many employees will likely be solicited by…more

Sports Gambling

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Restaurants and Food Retailers Are Now Required to Post Proposition 65 Warning Signs about BPA in All California Locations

As of May 11, 2016, all businesses that distribute or sell food and beverage products in California that potentially contain bisphenol A (BPA) are required to provide a warning under California’s Proposition 65 to consumers. BPA…more

BPA, OEHHA, Proposition 65, Restaurant Industry, Retailers

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Much Ado About Doing Nothing: DOJ’s Latest Memorandum Cracks Open Door to Marijuana Development on Tribal Lands

In December 2014, the Department of Justice (DOJ) released a policy statement regarding enforcement of marijuana laws in Indian Country. While some media have reported the Department’s statement as carte blanche for tribes to…more

DOJ, Marijuana, Marijuana Cultivation, Policy Statement, Tribal Lands

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SEC Proposes Pay Ratio Disclosures

The Securities and Exchange Commission (SEC) has proposed rules under the Dodd-Frank Act to require public companies to disclose the ratio of the annual total compensation of their principal executive officer (PEO) to the median…more

CEOs, Disclosure Requirements, Dodd-Frank, Pay Ratio, SEC

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Perspectives on Insurance Recovery

Welcome to the latest edition of Pillsbury’s Perspectives on Insurance Recovery. As this 2015 edition of Perspectives demonstrates, our team is working on the most challenging issues—from cyber-insurance and complex claims…more

Bad Faith, Certificate of Insurance, Commercial Property Owners, Construction Contracts, Cyber Insurance

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Blockchain Basics: A Primer - Blockchain, the technology underlying the cryptocurrency Bitcoin, is poised to revolutionize how all commercial transactions are conducted

You have probably heard of Bitcoin, a peer-to-peer, non-governmental currency. Bitcoin is the first money that is its own payment system. That is, no bank, money transmitter or intermediary of any kind is required to clear and…more

Bitcoin, Blockchain, Corporate Sales Transactions, Digital Assets, Financial Sector

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New Amendments to UCC Article 9 Now Effective in Most Jurisdictions

On July 1, 2013, amendments to Article 9 of the Uniform Commercial Code, which governs using personal property as collateral, became effective in most jurisdictions. The changes to Article 9 a ect both existing and future…more

Article 9, Collateral, Debtors, Personal Property, Registration

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New York and English Courts Issue Similar Joint Memoranda on the Enforcement of Money Judgments with Dubai Courts

The March 23, 2015 Memorandum of Guidance issued jointly by the Dubai International Financial Centre Courts (DIFC Courts) and the U.S. District Court for the Southern District of New York (SDNY Court) follows the same pattern as…more

DIFC, Dispute Resolution, Dubai, Foreign Judgments, International Litigation

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Casinos Go Virtual

In late February 2013 the New Jersey Legislature passed legislation allowing on-line wagering, subject to certain limitations. This legislation was signed into law by Governor Chris Christie. Under the new law, licensed…more

Casinos, Chris Christie, Licenses, Online Gaming

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AAA Revises Construction Industry Arbitration Rules and Mediation Procedures

The American Arbitration Association (AAA) has revised its Construction Industry Arbitration Rules and Mediation Procedures (Rules), effective July 1, 2015. Although some changes are relatively modest, others expand the powers…more

American Arbitration Association, Arbitration, Arbitration Agreements, Case Management, Construction Contracts

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PHH v. CFPB, Part I: President of Consumer Finance No More

In response to a challenge from mortgage servicer PHH Corp. regarding the constitutionality of the single director structure of the Consumer Financial Protection Bureau (the CFPB or Bureau), the United States Court of Appeals,…more

CFPB, Constitutional Challenges, Director Removal, Dodd-Frank, Government Agencies

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EPA Doubles Down with Expansive New Methane Regulation

The Obama administration took two major steps in implementing its comprehensive climate change strategy this month, setting first-ever methane emissions standards for new, reconstructed and modified sources and simultaneously…more

Clean Air Act, Climate Action Plan, Climate Change, Energy Sector, EPA

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Second Circuit Develops “Primary Beneficiary” Test to Evaluate Unpaid Internships

On July 2, 2015, the U.S. Court of Appeals for the Second Circuit adopted a “primary beneficiary” test for evaluating whether unpaid interns are employees for purposes of the Fair Labor Standards Act (FLSA). Rejecting a…more

FLSA, Fox Searchlight Pictures, Internships, Misclassification, Unpaid Interns

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Understanding the New Texas “Open Carry” Gun Laws

Effective January 1, 2016, individuals with a license to carry will be authorized to carry a holstered handgun openly in public. Texas property owners must comply with specific requirements if they decide to prohibit guns on…more

Concealed Carry Permit, Concealed Weapons, Gun Laws, Leases, Popular

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FinCEN Targets “All Cash” Real Estate Deals in Manhattan and Miami

On January 13, 2016, the Financial Crimes Enforcement Network (FinCEN), a bureau of the U.S. Department of Treasury (Treasury), as part of its continued efforts to combat money laundering, issued its first Geographic Targeting…more

Bank Secrecy Act, Cash Transactions, FinCEN, GTO, Real Estate Transactions

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The “Panama Papers” and the Secret World of Shell Corporations - Reducing Liability Exposure and Seeking Insurance Coverage

A leak of 11.5 million documents from a law firm in Panama may implicate politicians, criminals, and celebrities in sheltering of fortunes in offshore tax havens through the use of shell companies. Called the “Panama Papers,”…more

Corruption, Criminal Investigations, DOJ, FCPA, Indemnity Insurance

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